IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30027 of 2010(C)
1. M/S.J&J TIMBERS, 23/418, MAIN ROAD,
... Petitioner
Vs
1. THE ASSISTANT SECRETARY,
... Respondent
2. THE DEPUTY COMMISSIONER (APPEALS),
3. THE ASSISTANT COMMISSIONER,
4. THE INTELLIGENCE OFFICER (IB),
For Petitioner :SRI.T.M.SREEDHARAN
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :15/10/2010
O R D E R
C.K.ABDUL REHIM, J
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W.P(C) No. 30027 of 2010-C
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Dated this the 15th day of October, 2010.
J U D G M E N T
Issue involved in this writ petition pertains to penalty
imposed through Ext.P1 order, under Section 45A of the
Kerala General Sales Tax Act (KGST Act). Appeal filed
against Ext.P1 order was disposed of through Ext.P2. The
appellate authority had set aside the order of penalty and
remanded the matter to the 4th respondent for passing fresh
orders. Against Ext.P2 further appeal was filed before the
1st respondent Tribunal. Through Ext.P4 order the second
appeal was dismissed holding that there is no infirmity in
the order passed by the first appellate authority. Pointing
out provisions contained in Section 34 of the KGST Act,
which stood as amended with effect from 23.7.2001, it is
contended by the petitioner that the Deputy Commissioner
(first appellate authority) has no power to remand the
matter for passing fresh orders. Attention of this Court was
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drawn to the provisions contained in Sub section 3 of
Section 34.
2. However, pointing out the above said aspect, the
petitioner had already submitted a rectification application
before the first respondent Tribunal, under Section 43 of
the KGST Act. The said rectification application is pending
consideration and disposal before the Tribunal. Present
grievance of the petitioner is that without considering
pendency of Ext.P5 petition, the 4th respondent is now
initiating steps for passing fresh orders in compliance with
the directions contained in Ext.P2 order.
3. Considering the facts and circumstances and also
the legal position as enumerated, I am of the opinion that
this writ petition can be disposed of directing appellate
Tribunal to expedite consideration of Ext.P5 petition and till
then to restrain the 4th respondent from passing fresh
orders.
4. In the result, the writ petition is hereby disposed
of directing the 1st respondent Tribunal to consider and pass
W.P(C) No. 30027 of 2010-C 3
orders on Ext.P5 rectification application, after affording an
opportunity of hearing to the petitioner, at the earliest
possible, at any rate within a period of six weeks from the
date of receipt of a copy of this judgment.
5. Till such time orders are passed by the 1st
respondent as directed, the 4th respondent is restrained
from passing any fresh orders consequent to Ext.P2
appellate order.
Sd/-
C.K.ABDUL REHIM
JUDGE
//True Copy//
P.A to Judge
ab
W.P(C) No. 30027 of 2010-C 4